Hong Kong Law Journal 1971 - 2018

Vol. 44, Part 1 of 2014

When Kong Yunming was decided by the lower courts, it neither occurred to the Court of First Instance nor the Court of Appeal that Art 36 of the Basic Law could be argued to imply that the ‚Äúright to social welfare‚ÄĚ conferred therein on Hong Kong residents can be ‚Äúconcretised‚ÄĚ to mean the social welfare benefits that Hong Kong residents enjoyed immediately before the 1997 handover in accordance with the laws or policies prevailing at that time. The ‚Äústroke of genius‚ÄĚ in the Court of Final Appeal‚Äôs decision was to define precisely the substantive content and scope of the social welfare right protected by Art 36, at least as far as social security in the form of cash assistance for the needy such as the Comprehensive Social Security Assistance scheme was concerned. This was achieved by reading Art 36 and Art 145 of the Basic Law as a whole, so as to import from Art 145 into Art 36 the level of social welfare provisions as they existed immediately before the 1997 handover. This comment will focus on this adoption of the level or content of social welfare rights as of 1997 as the baseline for the protection of social welfare rights under the Basic Law, and assess it by comparing it with the approach adopted by the lower courts in this case, and with overseas jurisprudence on the constitutional protection of socio-economic rights.

The constitutional right to social welfare in Hong Kong has always been implemented by administrative rules and policies. The seven-year residency requirement was a policy ordered by the Chief Executive-in-Council in 2003. As argued in this article, the requirement was a restriction on an enjoyed right that was not ‚Äúprescribed by law‚ÄĚ because it was not made or derived from a public law-making process. Under Art 39 of the Basic Law, the government in a judicial review case would not be allowed to justify the r estriction with reference to rationality and proportionality arguments. In Kong Yunming v Director Social Welfare, the Court of Final Appeal did not address Art 39 and implicitly accepted that the restriction was indeed prescribed by law. With reference to Hong Kong and international jurisprudence, it is argued that the Court overlooked the transparency and accountability values within the concept prescribed by law.

This comment argues that the Court of Final Appeal (CFA) in Kong Yunming has erred insofar as it applied the proportionality analysis vis-√†-vis any restriction placed on the Art 36 right to social welfare. Even if the CFA was right to apply the proportionality analysis, it is argued that there is a rational connection between the 7-year residence requirement and the Government‚Äôs aim of ensuring the sustainability of the welfare system by addressing the problems raised by the following issues: (a) immigration from the Mainland under the One-Way Permit scheme; (b) Hong Kong‚Äôs ageing population; and (c) the rise in Comprehensive Social Security Assistance Scheme expenditure. Finally, even if the impugned 7-year residence requirement was unconstitutional, the CFA should have issued a temporary suspension order, rather than restore the 1-year residence requirement.

It would be easy to overstate the expansive impact of the Court of Final Appeal‚Äôs controversial decision in Kong Yunming v Director of Social Welfare on the right to social welfare, its effects in removing a significant obstacle for new immigrants seeking social security payments notwithstanding. The new test that the Court deployed for reviewing the constitutionality of welfare policy is narrow and devoid of any commitment whatsoever to abstract societal ideals; it resembled the proportionality doctrine at most in form but definitely not in spirit. This article demonstrates how, properly understood, the three stages of this test boils down to no more than one stage: whether the impugned policy is manifestly unreasonable. This minimalist standard, in many ways similar to Wednesbury irrationality, evidences the Court‚Äôs entrenchment of judicial deference in welfare policy adjudication and conservative economic philosophy in the constitutional common law of Hong Kong.

Kong Yunming v Director of Social Welfare is a landmark victory for the protection of constitutional social welfare rights in Hong Kong. In this unanimous decision of the Court of Final Appeal, the seven-year residence requirement for Comprehensive Social Security Assistance (CSSA) imposed by the Department of Social Welfare was ruled unconstitutional. This case shows a shift in the approach of the court in the adjudication of social welfare rights under the Basic Law. Nonetheless, the decision is very controversial not only because of recent Mainland China-Hong Kong social tensions, but also because of potential wide implications on future public expenditure on CSSA and the validity of other similar social welfare benefits with the seven-year residence requirement. It also opens to question the legitimacy of the court in overruling government policy choices on resource allocation. This article seeks to provide some clarifications on the legal issues involved and to make a preliminary analysis on the implications the case might have for future law and policy on social welfare.

This article examines the current Hong Kong consumer protection regime relevant to unfair terms in standard form consumer contracts and attempts to demonstrate the deficiency in this protection framework and the need for urgent reform. In particular, the article takes a closer look at the seemingly ineffectual Unconscionable Contracts Ordinance (Cap 458), as compared with its UK legislative equivalent, as well as other factors possibly affecting the pursuance of claims by consumers. To this end, the article attempts to explain why the current protection regime in Hong Kong is not being effectively utilised and suggests how this might be rectified in the interests of local consumers.

It is not uncommon for parties to a contract to agree to assume a qualified obligation. The obligation may be to use one‚Äôs ‚Äúbest endeavours‚ÄĚ, ‚Äúreasonable endeavours‚ÄĚ or ‚Äúall reasonable endeavours‚ÄĚ to achieve a stated objective. What exactly do these obligations entail has generated a body of case law but their distinction is still far from clear. This article examines how these obligations have been interpreted by the courts in England, Australia and Hong Kong, in the hope that they may shed some light on how such terms may be interpreted in the future by a Hong Kong court.

This paper proposes gender recognition legislation for transsexual people in Hong Kong that is comprehensive (extending beyond marriage) and inclusive (applying to all transsexual people, regardless of medical treatment received). It notes that hormonal and surgical treatments are not medically necessary for many transsexual people, whose distress is often caused by the failure of others to recognise their experienced gender, rather than by concerns about anatomy. The paper then examines the importance of gender recognition in transsexual people‚Äôs lives, and examines the health and human rights arguments against refusing legal gender recognition, and against preconditions for gender recognition that require transsexual people to undergo medical procedures. Particular attention is paid to requirements involving sterilisation. The paper concludes by advocating a Gender Recognition Ordinance for Hong Kong along the lines of the UK Gender Recognition Act, referred to in the Court of Final Appeal decision in the ‚ÄėW‚Äô case as a ‚Äėcompelling model‚Äô for Hong Kong.

Abdul Majid, Haemala Thanasegaran, Sri Yogamalar Sinnathamby and Carmelia Cheong*
In Leung Ka Lau v Hospital Authority, the plaintiffs were doctors who sued for overtime pay for, inter alia, enforced overtime squeezed out of them without pay by their employer, the Hospital Authority. The Court of First Instance, the Court of Appeal and the Court of Final Appeal dismissed their overtime claims purely, as they said, on the terms of their contract. An earlier paper published in Hong Kong has argued that the decision was flawed as it was made per incuriam in so far as the attention of the courts was not drawn to statutory provisions that invalidated the contractual terms on which all three courts relied to dismiss the claim. This paper expounds another ground on which the claim could have been decided differently. It argues that if the doctrine of public policy had been raised by counsel and if the courts had been willing to recognise a new head of public policy, the contractual provision enabling the employer to extract unpaid labour on a regular basis would have been struck down. The paper begins with a discussion of public policy at common law before providing an overview of how the doctrine has evolved in the common law jurisdictions of Malaysia, India, Singapore and Hong Kong before applying it to the facts of Leung Ka Lau v Hospital Authority.

Public policy considerations feature prominently when challenges are made against attempts to enforce an arbitration clause or agreement and when issues relating to the recognition and enforcement of an arbitral award are before the courts. This article will provide an analysis of the concept of public policy and will attempt to discern the approaches adopted by the courts in selected common law jurisdictions in their elucidation of this nebulous and yet important concept. In the ensuing discourse, the underlying tension that is pervasive in this aspect of law concerning international commercial arbitration is also discussed and considered. It is hoped that the deliberations will be a catalyst for further comparative research concerning the application of the concept of public policy and the predisposition of the courts when interpreting such a concept in arbitral proceedings in both civil law and common law jurisdictions.

Social rights adjudication has an important role to play in enforcing and entrenching
socio-economic rights. The Indian Supreme Court‚Äôs record in adjudicating socioeconomic rights has been formidable, but in spite of devising a range of methods by which socio-economic rights may be implemented, the Supreme Court faces a challenge in terms of implementation. This article argues that a modification of its methodology of adjudication might lead to better implementation of socioeconomic rights decisions and reduce re-litigation. This article posits that in social rights adjudication, the Supreme Court must frame comprehensive mandatory orders, an adherence of which will lead to wholesome implementation of socioeconomic rights. Thereafter, the Supreme Court must vest the National Human Rights Commission with the responsibility of overseeing the implementation of the decision. This method, it will be argued, by combining comprehensive mandatory orders with competent post-decisional monitoring, is eminently suited to ensure that the decisions of the Supreme Court on socio-economic rights are implemented and the transformative ideals of the Indian Constitution are realised.

One Country, Two Systems: Cross-Border Crime between Hong Kong and China, Kam C Wong [New Brunswick: Transaction Publishers, 2012, 233 pp US$39.95] [ISBN: 9781412846233]
Broadly speaking, and with some justification, given the intricate and equivocal nature of the subject, international law has traditionally been more concerned with the substantive than methodological dimension of inferential reasoning. However, one ultimately depends on the other, and overlooking method may impede the ability to effectively address matters of substance. Kam C Wong, a socio-legal scholar, originally from Hong Kong but currently based in the United States, has recently written a book, entitled One Country‚ÄďTwo Systems: Cross- Border Crime between Hong Kong and China, that endeavours to selectively bridge the methodological-substantive divide. The purpose of this essay is not to provide an elaborate review of the study, but to employ it as a vehicle for bringing into focus certain methodological ‚Äď and, by implication, conceptual ‚Äď questions that should arguably loom larger in academic international legal discourse.

Chinese local governments often find themselves with enormous discretion in regulating the local market. Driven by political ambitions, bureaucrats are eager to use any means available to raise local GDP. These methods include some that contradict the policy of the central government and have negative effects on the local community. These practices invite a ‚Äúrace to the bottom‚ÄĚ situation and create symbiosis between management and bureaucrats, increasing the likelihood of corruption. These problems of racing to the bottom can be solved by actions of the central government. Meanwhile, thru introducing charters competition, local lawmakers still can compete and the competition under legal frame will be ‚Äúrace to the top‚ÄĚ competition. Given the specific political and economic realities of China, the problems preventing the EU and Canada from adopting charters competition will not haunt China. Through proper legal arrangement, local provinces may have a chance to promulgate their own corporate laws, even if the corporate law-making power remains in the hands of the national legislature.

This article is a case study of mediation in a basic level court in an underdeveloped southwest ethnic minority county. It details the whole process of court mediation when solving disputes through ‚Äúthick description‚ÄĚ. It argues that court mediation is feasible there because both the judge and the disputant are embedded in the local social structure and that court mediation is good practice for solving the dispute. Court mediation can maximise the benefits for all involved individuals and also provide an acceptable dispute resolution, although it may differ from the ideal model which is more suitable for developed urban areas of China.

Given that issues such as legislative deficiencies, regulatory arbitrages and financial consumers‚Äô losses are increasing in China‚Äôs financial market, it is imperative that theoretical innovations and institutional reforms of China‚Äôs financial law be guided by fair pricing and geared toward realizing a generally effective financial market. The parameters of realizing a generally effective financial market, which are drawn from the Capital Asset Pricing Model, the Behavioral Finance Theory and the Arbitrage Pricing Theory, imply that issues of legislative deficiencies, regulatory arbitrage and financial consumers‚Äô protection will only be resolved by a comprehensive reform of China‚Äôs financial law. This comprehensive reform should include the reform of financial products regulation and financial institutions behavioral regulation, toward the goal of realizing information symmetry, reducing transaction costs and maintaining financial consumer‚Äôs rationality. These are the elements necessary to form a generally effective financial market.

Recently the Shenzhen Lawyers Association has published records of seventeen disciplinary cases. These cases by an Association, when viewed alongside cases published by the Ministry of Justice, provide an insight into the workings of the ‚ÄúDual Management‚ÄĚ system for lawyers. At the same time, the records give us an insight into the day-to-day workings of the rapidly growing legal profession in Shenzhen, Hong Kong‚Äôs immediate neighbour.

Vol. 44, Part 2 of 2014

The Law Reform Commission published its proposals for reform of child custody laws in 2005, recommending that the existing system of ‚Äúcustody‚ÄĚ be replaced by ‚Äúparental responsibility‚ÄĚ. Since then, despite a public consultation process concluded in 2011, the outcome of which was generally supportive of the proposals for reform, the Administration has not yet introduced draft legislation. One reason given for this is the concern expressed by some consultees regarding the ongoing nature of parental responsibility of both parents towards their children, even after divorce, and the opportunity this presents for ongoing hostility and abuse between parties. However, those risks, while real, are not specific to a framework of parental responsibility and should not hinder its replacement of the outdated custody model. Instead, reform of child custody in Hong Kong should operate at two integrated levels: the conceptual, introducing parental responsibility, and the practical, establishing measures to be taken to address the need to diminish hostility and abuse and assist parents in moving towards co-operative parenting for the benefit of their child(ren).

In two recent cases heard together by the Court of Final Appeal, the court held that a trust arising from contributions to the costs of purchase of a Home Ownership Scheme flat is not an assignment or alienation rendered void by s 17B of the Housing Ordinance. This is a sensible and pragmatic conclusion where contributions from family or friends of the purchaser are concerned and can be justified by a purposive interpretation of the section. However, the court may have gone too far in its reasoning and opened up a route for commercial exploitation by which those very purposes will be undermined.

Modern legal culture ‚Äď basically, the culture of developed countries ‚Äď includes three salient traits. First, it places strong emphasis on human rights. A consciousness of human rights is a massive social fact in these societies. This consciousness implies the need for some mechanism to enforce human rights ‚Äď hence the explosion of bills of right, constitutions and judicial review. A second core trait of the human rights culture is the emphasis on, and the primacy of, free individual choice, although this is in fact far more constrained than most people realize. The third trait is convergence, that is, the societies and legal systems of developed countries, which face similar problems and have similar cultures, are gradually becoming more alike. Whether this will continue in the future is of course unknowable.

This is the text of a public lecture given at the University of Hong Kong on 20 May 2014. It is the author‚Äôs inaugural lecture upon his appointment as Professor of Legal Practice in the Faculty of Law of the University of Hong Kong. Having served for many years as a judge of the Court of First Instance, the author reflects on the challenges currently faced by the judiciary in Hong Kong. He identifies six such challenges and offers some suggestions as to how they might be addressed.

The Wednesbury case (1948)1 established a high threshold for review of actions of public authorities, which was reinforced by Lord Diplock in CCSU (1984)2 in formulating his ‚Äúrationality‚ÄĚ test. In practice, judges in the UK courts from 1970 applied a more flexible approach, also developing specific principles for judicial review. In 1987, Lord Bridge introduced the concept of ‚Äúanxious scrutiny‚ÄĚ, implying a more intrusive review in cases involving the right to life or other basic rights. By 2000, the courts recognised the concept of a ‚Äúsliding scale‚ÄĚ of rationality review depending on the nature and gravity of the case. At the same time, the Human Rights Act 1998 required judges to apply a test of ‚Äúproportionality‚ÄĚ, derived from the European Court of Human Rights. This lead has been followed in the Hong Kong courts under the Basic Law. There is now little to choose between the two principles. The actual decision in Wednesbury would be difficult to justify under the modern law, and its days as an authority may be numbered.

This article explores how the Court of Final Appeal has generally appealed to five forms of constitutional arguments when interpreting the Basic Law: (1) textual arguments, (2) historical arguments, (3) purposive arguments, (4) precedential arguments and (5) consequentialist arguments. The article also argues that no constitutional theory can rely only on one particular unitary interpretive methodology (whether that exclusive source may be the text, history or precedents of the Basic Law) to resolve all constitutional disputes. After all, even within each modality or type of constitutional argument, there may be ‚Äúintra-modal‚ÄĚ conflicts, such that there can still be reasonable disagreements as to what the correct answer within that interpretive mode is. The article concludes by arguing that various types of constitutional arguments may be substantially interdependent and interrelated, such that they can dovetail with one another to reach a reasonably coherent and defensible legal result.

Under the Personal Data (Privacy) Ordinance (Cap 486), a data subject has the right to make a request to the data user to be supplied with a copy of her personal data which the data user holds. The Ordinance prohibits the data user from charging an ‚Äúexcessive‚ÄĚ fee for complying with this request. This paper challenges the authorities‚Äô purely cost-based approach to the interpretation of the word ‚Äúexcessive‚ÄĚ, and argues that in determining excessiveness, all factors concerning the request ‚Äď including the cost of compliance ‚Äď should be taken into account.

Apology legislation refers to statutory provisions that remove legal disincentives to offering an apology in the context of civil disputes. The legislation clarifies and, in many cases, alters what would otherwise be the legal consequences of an apology, principally by reforming the law of evidence. A principle aim of apology legislation is to encourage apologies by removing legal disincentives to apologising. Other aims are to promote the settlement and resolution of disputes and to reduce litigation. Apology legislation has been enacted in most US states, each state and territory in Australia, in England and Wales, in most Canadian provinces and territories, and has been considered in Scotland. Apology legislation is currently being considered by the Department of Justice, Hong Kong Special Administrative Region Government. This article identifies a number of matters that need to be considered when introducing apology legislation to assist in the resolution of legal disputes.

Taking the opportunity of the recent Trust Law Reform in Hong Kong, this paper argues that non-charitable purpose trusts (NCPTs) are difficult to reconcile with well-established legal principles of Anglo-Hong Kong law. The different lines of challenges made to the proprietary aspect of the beneficiary principle are explored and examined. The principle itself is justified normatively while the doctrinal and practical weaknesses of the purely obligational nature of the enforcer principle are exposed. Despite the commercial advantages brought about by NCPTs, the author maintains that the proprietary aspect of trusts cannot easily be sacrificed.

This article argues that a defence of entitlement should be recognised in the law of unjust enrichment, consistently with the case law and sound principle, and in mutual support of a rule against leapfrogging. In so doing, this article also explores the relationship between unjust enrichment and contract.

The recognition and enforcement of foreign arbitral awards in the Macau Special Administrative Region of the People‚Äôs Republic of China is not always subject to the same legal rules. Foreign arbitral awards may be divided, according to their origin, into four different groups: awards made in a New York Convention country, other than China; awards made in mainland China; awards made in Hong Kong and awards made in a non-New York Convention country. This article analyses the sets of rules applicable to the different types of foreign arbitral awards. Macanese courts have limited experience in this regard. In order to change this, it is necessary to raise the awareness among judges about the specificities of international commercial arbitration by promoting an ‚Äúarbitration culture‚ÄĚ.

A unique feature in the interpretation of tax laws in China is that administrative organs have enjoyed a near monopoly status in interpreting rules. The high centralization of powers combined with the lack of effective checks leads to problems which in turn jeopardize the legitimacy of interpretations made by administrative organs. In the short run, while this monopoly status will not be changed fundamentally, the problems may be alleviated through the ‚Äúself-constraints‚ÄĚ adopted within the government and applied in order to comply, more effectively, with the requirements of the ‚Äúrule of law‚ÄĚ. Meanwhile, external factors are playing an increasingly important role in shaping the development and interpretation of tax law, including the supervision from civilians, tax professionals and non-government organizations, as well as the influence of the international tax community.

Derivative action was introduced into China by the PRC Company Law 2005. Its effectiveness is yet unknown. This paper presents a comprehensive empirical study of this type of legal action in practice. It finds that derivative actions were brought in Chinese courts even before the entry into force of the Company Law 2005, despite the absence of a clear statutory basis for such cases. It also finds that although the new statutory derivative action confers upon shareholders the right to protect themselves, this has had no significant impact in practice because of legislative loopholes, such as the high standing requirements, and an unclear demand rule. It is submitted that this new system needs to be reformed and clarified in the future.

Based on empirical data collected from a model rural tribunal in eastern China, this article explores how rural courts achieve popularity among litigants by employing paternalistic approaches and how the approaches influence rural people‚Äôs legal consciousness. By channelling the disputes, obtaining the trust of the litigants and marginalising legal rules, judges divert the trial to the pre-determined reconciliatory outcomes and set the litigants‚Äô own demands aside. The litigants, who were in awe of the laws, are now enchanted by the approach and start to develop an illusory perception of playing with the laws. The litigants‚Äô legal consciousness, however, is not improved by their litigation experience, as resolution is achieved not according to the substantive legal rules, but out of the judges‚Äô preferences. The research further sheds light on the promotion of the rule of law in rural areas.

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Book Reviews

Children and International Human Rights Law: The Right of
the Child to Be Heard, Aisling Parkes Anne Scully-Hill

Vol. 44, Part 3 of 2014

Of all the preconditions to realising universal suffrage of the Chief Executive in 2017, the most challenging is getting two-thirds of the 70 legislators to agree on a reform proposal. On 31 August 2014, the Standing Committee of the National People‚Äôs Congress made this challenge even more difficult by imposing restrictive and controlling conditions on the nomination process. The decision sparked unprecedented protests and acts of civil disobedience on the streets of
Hong Kong in September, continuing for weeks and months thereafter. Legislators have until the middle of 2015 to assess whether they can agree with the central and local governments on a single reform proposal. This article assesses the arguments for and against the reform, within the constraints of the Standing Committee‚Äôs decision. It argues in favour of the reform so long as there are sufficient reassurances and measures to regain the trust of the Hong Kong people. The complete reform proposal will need to have sufficient safeguards and counterbalances to ensure that the central government does not control both the nomination and election results. All stakeholders need to take positive steps to make for more favourable reform conditions.

In HKSAR v Lai Shui Yin, Barnes J made a conscious choice to depart from the well-established UK position concerning the mens rea requirement for gross negligence manslaughter (GNM) and ruled that subjective foresight of a risk of death is a prerequisite for a GNM conviction. Given the upcoming High Court trial of the ship captains of the Lamma Ferry incident, in which liability turns on the very issue decided in Lai Shui Yin, it is important to assess whether Barnes J‚Äôs decision is derived from a sound legal basis and whether adequate reasoning was employed in reaching Her Ladyship‚Äôs decision. This casenote will argue that Barnes J misinterpreted the legal effect of the Court of Final Appeal case of Sin Kam Wah, and did not adequately explain why the subjective mens rea position is preferable. The courts should be wary of the misconceived legal basis and inadequate reasoning behind Lai Shui Yin.

The new Companies Ordinance (Cap 622) introduces a mandate for the annual directors‚Äô report of Hong Kong-incorporated public and ‚Äúlarge‚ÄĚ private and guarantee companies ‚Äď the inclusion of an analytical and forward-looking business review. This requirement aims to enhance the information usefulness of the annual reports. This article questions whether this aim could be achieved in view of its conflicting overlap with the current Listing Rules requirements, the repetition of information already available in the financial statements, the notable lack of clear guidance on and intrinsic difficulty with some of the minimum disclosures and the tendency for its forward-looking disclosures to be of limited use.

The MTR Corporation Ltd had through a press briefing by Mr Chew Tai Chong, its projects director, on 15 April 2014, announced that the opening of the Hong Kong section of the Guangzhou-Shenzhen-Hong Kong Express Rail Link would be delayed by two years to the end of 2017. Despite the potential significance on its financial results, the company surprisingly did not make any announcement as regards price-sensitive information. This article argues that the failure to do so placed the company and its officers in breach of the Securities and Futures Ordinance (Cap 571) and that any failure by the Securities and Futures Commission to act will not bode well for the enforcement of securities laws in Hong Kong.

Not many cases about family trusts come to court in England these days, and very few reach the Supreme Court. The courts are more often concerned with commercial trusts such as trust deeds forming part of the documentation for an issue of loan notes or derivatives, or the trust deeds of occupational pension schemes which provide retirement benefits for employees. So the recent cases of Pitt v Holt and Futter v Futter, which were heard together both in the Court of Appeal1 and in the Supreme Court,2 are of particular interest to those concerned with private client work.

Several aspects of the common law system provide distinctive doctrinal and institutional strength ‚Äď one is its adaptability to varied geographical and social conditions in jurisdictions across the world; another is its method of adjudication, with the development of precedent which balances competing interests by proceeding not from large generalisations but from case to case decided by a cohort of skilled judges who are assisted by an independent legal profession.

Preserving the integrity of public institutions is increasingly recognised as a vital part of any governance system. Some advocate the recognition of a distinct integrity branch of government. Over recent decades Australian constitutional law has adopted a test of institutional integrity in the context of separation of powers. Integrity has become central to Australian administrative law by restoring the focus on jurisdictional error. This article summarises these jurisprudential developments and discusses their implications

Hong Kong shares the predicament of most developed countries in facing a rapidly ageing society. Government statistics project that by 2041, almost one in three in Hong Kong‚Äôs population will be aged 65 or above. Combined with one of the lowest birth rates and also highest life expectancy in the world (in fact, the highest for women), the need for a comprehensive legal framework to enable the elderly to make financial planning for the vicissitudes of life has become imminent. For the general population, simple and affordable legal instruments such as the enduring powers of attorney are particularly useful. Yet, the Enduring Powers of Attorney Ordinance is based primarily on an English statute of 1985, which itself has been revamped a decade ago in 2005. In light of these concerns, the present paper will, first, examine inexpensive financial management services that are currently used by the elderly in Hong Kong; second, focus on the enduring powers of attorney with a view to identifying legal and practical impediments to their widespread use; and third, propose ways to reinvigorate the enduring powers of attorneys and align them with cultural practices in Hong Kong.

On 1 March 2013, the Government of Hong Kong enacted an export barrier which generally prohibited the exportation of powdered formula for infants and young children, in order to ‚Äėensure a safe an d stable supply of powdered formula‚Äô and to ‚Äėcombat parallel trading activities‚Äô. This article probes the World Trade Organization (WTO) consistency of Hong Kong‚Äôs export barrier of powdered formula and submits that this measure is not consistent with Article XI:1 of the GATT 1994. The article further submits that Hong Kong cannot justify this inconsistency of WTO under Article XI:2(a) or XX(b) of the GATT 1994. The article concludes by suggesting a way forward, whereby Hong Kong may be able prevent its international reputation from being tarnished by a WTO-inconsistent measure, while at the same time continuing to pursue its policy objective.

The purpose of this article is threefold. First, it aims to present the features of the current land registration system, including the historical and social context in which the system operates. Second, drawing on empirical observations, it attempts to provide a preliminary assessment of institutional performance regarding the land registration system. In many ways, the land registration system in urban China can be considered efficient. Third, in view of regulatory overlaps among different departmental rules and between national and local provisions, a policy that strives for a unified registration system at the national level is indispensable to simplify land transactions, to use land as collateral for credit, and to enable land administration. Some of the challenges and uncertainties faced by this policy have been highlighted.

Characterising the ‚ÄúOne Country, Two Systems‚ÄĚ (OCTS) constitutional balance has long been a polarising exercise. An excellent primer of Hong Kong-based scholarly opinion is presented in Fu Hualing et al.‚Äôs Interpreting Hong Kong‚Äôs Basic Law: The Struggle f or Coherence. This article engages with the submission by Robert Morris, entitled ‚ÄúForcing the Dance: Interpreting the Hong Kong Basic Law Dialectically‚ÄĚ. Morris astutely cites Deng Xiaoping‚Äôs original application of Marxist dialectical materialism as one method for interpreting OCTS. He seems to apply a distinctly European paradigm, however, ultimately leading him to conclude that Beijing‚Äôs goal is ‚Äú‚Äėto assimilate Hong Kong into the mainland politically, legally, culturally and ideologically,‚Äô using force if necessary, at whatever place may exist there in 2047‚ÄĚ. An application of the indigenous strand of Chinese tongbian (ťÄöŚŹė) dialectics as elucidated by Tian Chenshan seems more proper. Tian asserts that tongbian characterised the Chinese reception of Marxist dialectics by Liang Qichao, Qu Qiubao and Ai Siqi before coming to fruition in Mao Zedong Thought. As tongbian dialectics reject the Western triad form and emphasise perpetual ‚Äúcontinuity through change‚ÄĚ, its application to OCTS suggests that Beijing has great theoretical incentive to maximise local autonomy now and into the future.

Local government debts in China come into the global spotlight due to its massive volume. This article is primarily concerned with the causes and potential solutions to local government debts in China. An attempt is made to understand the causes of local government debts through various dynamic elements of China‚Äôs public and fiscal finance, including revenue collection, allocation of government responsibility, fiscal expenditure and fiscal transfer within the central and local governments. Local governments‚Äô spending patterns reveal a deep and fundamental flaw in the overall governance structure, which necessitates a more comprehensive reform tackling the root problems underlying the local government debt crisis in China.

This article seeks to examine at a general level the tension between the stern policy of repression of recidivist thefts and the policy of leniency exemplified in acts of imperial benevolence. A study is attempted of the interplay between the regulations drafted by the Board of Punishments for a series of amnesties from the last decade of the eighteenth to the fourth decade of the nineteenth century and the interpretation of the substatutes dealing with various categories of dangerous thieves: (i) those who had received more than one conviction, (ii) those who had benefited from an amnesty more than once; and (iii) those who, after serving a term of exile or penal servitude for theft, on release committed further thefts. Particular points considered with respect to the amnesty regulations are the differences between a great amnesty (da she) and an ordinary amnesty (chang she), the operation of the technical rule on ‚Äúaccumulate and calculate (bingji)‚ÄĚ with respect to convictions for theft and the fluctuating policy in the treatment of thefts committed before but tried after a chang she.